Joint decisions 2347/2017 and 2348/2017

[…] The Plenary Court issued the two next Judgements on 22.9.2017 (2347/2017 and 2348/2017) rejecting the applications for annulment submitted by the 2 Syrian applicants, after discussing the cases before the Plenary Court in a joint hearing, because of their relevance, on 10.3.2017. These two most recent Judgements repeated the reasoning of the Judgements of May as regards the issues of legality of the regulatory acts and, in addition, rejected the other claims related to the STC concept. Also in most points the Judgements of the Plenary Court are in line with the referring Judgements of the 4^th Section of the Council of State. More specifically the Court ruled as follows:

a. On the impartiality of the members of the Committees, the Court found that the Committees have the status of a "third party" vis-à-vis the "parties" (implying the Asylum Service and the applicant) and do not represent the Administration. The impartiality of the members is not violated by the fact that it is possible that a judge participating in a Committee might also participate in the formation of an Administrative Court of Appeal which might be seized with an application for annulment against a Decision of another Committee. The Committees are not "courts" but are "Committees which exercise competencies with a judicial character in accordance with the provision of Art. 89, par. 2, of the Constitution", therefore the fact that judges currently in service in the Administrative Courts participate in their composition, is allowed. The nature of the Committees is not revoked by the fact that i. their decisions are issued following a quasi-judicial appeal, ii. their decision can further be challenged through an application for annulment before the Administrative Courts of Appeals,  iii. their decisions are not published in a public hearing and are just notified to the appellants, iv. the judges members of the Committees can be replaced, v. the administrative Director has some competencies regarding their functioning, and vi. that the Minister can increase or decrease the number of the Committees.  Furthermore the Court held that the fact that the procedure before the Committees, as a rule, does not include a hearing, does not undermine the adversarial character of the procedure (and thus does not undermine the quasi-judicial character of the Committees). The Court also rejected the argument by the claimants regarding the legal basis of the ministerial decision on the composition of the Committees (being L. 4399/2016 which, according to the applicant is and in what concerns the composition of the Committees is unconstitutional) and the argument that the Committees constitute, de facto, Specialized Courts forbidden by the Constitution. 

b. Regarding the procedure for the designation of the judges-members of the Committees, the Court found it to be also in accordance with the Constitution and relevant Greek legislation.

c. Regarding the legality of the procedure for the adoption of the Regulation of the Appeals Authority, the Court judged that the procedure was lawful and that all related claims of the applicants must be rejected. 

d. On the participation of EASO experts in the procedure at first instance, the Court ruled that this participation is provided in the Greek legislation and is in conformity with the legal framework on the operation of EASO (Regulation 439/2010) and the Directive 2013/32/EU (art. 14 par. 1). The participation of EASO staff in these procedures is "not contrary to any constitutional provision".

e. Regarding the two Decisions of the Independent Appeals Committees by which the applications for international protection of the applicants were rejected at second instance:

       i.          The Court rejected the claim of the applicants that the rejection of their asylum applications was based on a non-binding agreement (the EU-Turkey Statement). The Court ruled that the rejection of the applications was based on Art. 54, 55, and 56 of Law 4375/2016 (inadmissible applications, "first country of asylum" and "safe third country") and not on the EU-Turkey Statement (par. 44)^[1]. Through the above argumentation, the Court did not rule on the binding or not character of the EU – Turkey Statement of 18.3.2016, therefore the reasoning of the Decision of the Appeal Committee on the issue was neither confirmed nor rejected.  

      ii.          The Court referred (par. 45) to the letters that were taken into consideration by the Appeals Committee (two letters 12.4.2016 and 24.4.2016 by the Ambassador of the Permanent Representation of Turkey to the EU, the letter of 5.5.2016 by the Director General of the EC DG Home, the letter of 29.7.2016 by the EU Commissioner for Migration, two letters by the UNHCR of 4.5.2016 and 9.6.2016) and the Report by the Special Rapporteur of the CoE dated 10.8.2016. The Court concluded that the fact that the Appeals Committee, in order to assess the applicant's claim, took into  consideration letters by the Turkish Authorities, is not opposed to any legal provisions  of the APD or L. 4375/2016 or any other legal provision. These letters are manifesting the intention of the Government of Turkey to provide protection to persons, including to Syrians, being returned from Greece, according to the Turkish legislation and related international rules. In addition, the applicable law did not forbid that the Appeals Committee consider similarly the other letters submitted in the file. (par. 46).

f.       Regarding the application of the "safe third country" concept:

i.                 Criterion (a) of Art. 56, par. 1, L. 4375/2016 (threat for life and liberty): The Court found that the adjudication by the Appeals Committee is fully reasoned and thus lawful. In particular, the Court found that the Appeals Committee Decisions lawfully (a) rejected as unfounded the claim that the first applicant is of Kurdish nationality and assessed that, even if the applicant was of Kurdish nationality, information on Turkey (without specifying the sources of information), the Report of the Special Rapporteur of the CoE and the fact that the applicant did not claim any personal circumstances due to which it can be concluded that he is in danger of detention, suggest that there is no such danger in Turkey for the applicant, and judged that, given that the appellant had resided in Turkey for a period of 1 and a half  month and he did not encounter any problem with the Turkish authorities, the aggressions he described (push-backs), which took place while he was trying to enter Turkey, were not systematic nor intended to harm him individually and there is no reasonable fear that the appellant's life will be at risk if returned to that country), (b)  rejected as unfounded the claim that the second applicant encountered aggressions (push backs) and assessed that, given that the he has resided in Turkey for a period of one  month and he did not encounter any problem with the Turkish authorities, the aggressions he described (push backs), which took place while he was trying to enter Turkey, were not systematic nor intended to harm him individually and there is no reasonable fear that the appellant's life will be at risk if returned to that country) .

ii.                 Criterion (c) of Art. 56, par. 1, L. 4375/2016 (risk of serious harm): The Court found that the adjudication by the Appeals Committee was also fully reasoned and thus lawful: the Committee had found that there is no danger for the applicant to be detained in inhuman or degrading conditions, on the argument that there is no danger of detention and, consequently, there is no danger for detention in inhuman or degrading conditions as the applicant had claimed.  Furthermore the Committee had judged that the claim of the applicant that the living conditions that he would face upon return to Turkey would be in violation of Art. 3 ECHR should be rejected as the claim regarding violation of the ECHR cannot be lawfully brought in the present procedure where only claims regarding international protection can be submitted. The Court also found this argument of the Appeals Committees decision as sufficient and lawful (par. 53).

iii.               Criterion (b) of Art. 56 L. 4375/2016 (respect of the principle of non-refoulement): The Court ruled that the fact that the principle of non refoulement is not mentioned in a Turkish formal law, but only in a Ministerial Decision (the Temporary Protection Regulation 2014/6883) is not influencing as the Ministerial Decision is a binding legal text. According to the Court, the Appeals Committee had taken into consideration the large number of refugees in Turkey and the letters by the Ambassador of Turkey to the Permanent Representation in the EU, which constitute "legal and appropriate" information.

iv.              Criterion (e) of Art. 56 L. 4375/2016 (existence of the possibility to request refugee status and to receive protection in accordance with the Geneva Convention): The Court concluded that for this criterion to be considered fulfilled, it is not required that the third country has ratified the Geneva Convention (and even without a geographical limitation) or that its legislation establishes not only the principle of non refoulement but also the rest of the rights provided for in the Convention. This conclusion is supported, according to the Court, by: i. the comparison of Art. 38 of the APD (transposed into the Greek law by Art. 56 L. 4375/2016) with Art. 39 of the APD (European safe third country), where it is provided that a third country can only be considered as a safe third country for the purposes of  par.1 when it has ratified and observes the provisions of the Geneva Convention without any geographical limitations while Art. 38 APD (safe third Country concept) does not expressly mention this requirement; ii. by comparison of Art. 38 of the APD with Art. 35 of the APD (first country of asylum), which provides that a country can be considered as a first country of asylum if the applicant otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement. Based on the above, the Court concludes that for the APD "any other sufficient protection" granted to aliens is equivalent to the protection granted to recognized refugees. This conclusion is supported, according to the Court, by the fact that the Geneva Convention does not provide for a uniform protection regime as the rights conferred are different depending to the legal status of refugees (present, lawfully present, lawfully staying) and by the fact that the States parties may express reservations during the signature, ratification or accession to the Geneva Convention. Therefore, the Court concludes, that for a country to be considered as a "safe third country" in the meaning of Art. 38 APD and Art. 56 L. 4375/2016, it suffices that this country offers "sufficient" protection of specific fundamental rights as, inter alia, the right to access health care and the labour market (par. 54). 

Furthermore, the Court ruled that the fact that (i) the Temporary Protection regime can be lifted at any time by an act of the Administration, (ii)the time under Temporary Protection status is not counted for the acquisition of nationality in Turkey and (iii) there are limitations in the choice of place of residence or work, do not influence the judgement on the equivalence of protection.

The conclusion by the Court was based on the assessment that (i) the APD does not require, for the concept of the safe third country to apply, that an alien can apply for asylum, as is the case under the provisions regarding the "European safe third country", or that the country has signed the Geneva Convention without a geographical limitation, (ii) the Temporary Protection status can be lifted by an act of the executive (Ministerial decision) does not influence its characterization as a protection regime in accordance with the Geneva Convention, as the lifting of the protection does not automatically mean that the beneficiary is removed to his/her country of origin, and  (iii) the Geneva Convention does not provide for an obligation to grant nationality to refugees after a period of time, nor does it provide for the counting of the period of stay of the refugee in the country of reception as one of the conditions of acquisition of nationality (par. 56).

Furthermore the Court ruled that the correctness of the Decisions of the Appeals Committee is not influenced by the assessments included in the Report of the Parliamentary Assembly of the CoE (dic. 14028/19.4.2916) nor the Report of the Special Rapporteur of the General Secretary of the CoE (10.8.2016), or any other information mentioned in the appeal of the applicant. 

Two judges of the Court (one of whom a Vice-President of the Court) have expressed a dissenting opinion on this point. More specifically, according to the dissenting opinion, Turkey cannot be considered as a "safe third country" according to the APD, as Syrian nationals cannot apply for refugee status since Turkey applies the Geneva Convention with a geographical limitation. In addition, the Temporary Protection status for Syrians in Turkey cannot be considered as being "in accordance" with Geneva Convention, as this status is of a temporary character, granted collectively, based on nationality and not on an individual basis, and can be lifted at any time by a decision by the Council of Ministers.

One member of the Court (one Vice-President) also expressed the opinion that in Turkey there is an oppressive regime where, particularly after the attempted coup, the rule of law is annulled, while, in this context, the letters by officials cannot be considered as having proofing power as evidence.

v.                Criterion (f) of Art. 56 L. 4375/2016 (connection with the safe third country): The Court ruled by majority that the Appeals Committee decisions are also lawful on this point as the transit of the applicants from the third country, the fact that they stayed there and the fact that the STC (Turkey) and their country of origin (Syria) are neighbouring countries, under the specific circumstances of the specific cases, constitute the required by law "connection" (par. 62). One judge (vice president) of the Court expressed a dissenting opinion on the above point. More specifically, he expressed the opinion that the mere transit and the fact that the applicants had resided in Turkey for 1 or 1,5 month intending to cross to another country in order to apply for asylum and to settle there, cannot be considered to constitute a sufficient link of applicants with Turkey since they did not reside in Turkey for an important period and given the specific circumstances .

g.      Furthermore, the Court ruled that "no provision" under the instruments of EU law confers to the UNHCR the "authority of authentic interpretation" of the Geneva Convention nor the UNHCR is recognized by EU law as competent to formulate binding, for national courts or administrative authorities, opinions. As a result, according to the Court, the Appeals Committee had lawfully concluded that the opinion of the UNHCR on the STC concept "does not influence at all" [this phrase of the Appeals Committee Decision is interpreted by the Court to mean "that there is no need for the Committee to rule specifically on this opinion by the UNHCR"]. Also the fact that the Committee, while rejecting UNHCR's opinion as it "does not influence at all", took into consideration UNHCR's letters of 4.5.2017 and 9.6.2017, is not contradictory as these letters contain information "that was lawfully taken under consideration" (par. 58). 

h.     On the request for a submission of a preliminary reference to CJEU, the Court ruled, with a majority 13/12, that, in view of the above, there is no reasonable doubt on the meaning of Art. 38 of the APD or the validity or interpretation of acts of organs of the EU and, thus, there is no reason to submit an application for a preliminary ruling to the CJEU according to Art. 267 TFEU (par. 63).

Twelve judges out of the twenty-five, including the two Vice-Presidents, have expressed a dissenting opinion, considering that such an application must be submitted to the CJEU. One Vice-President of the Court expressed the opinion also that the decision not to submit a preliminary reference to the CJEU, under the present circumstances, constitutes a violation of the TFEU and it might entail the liability of the State.